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Monday, September 5, 2016

GateHouse: The 1960s continue to impact on criminal prosecutions

Matthew T. Mangino

GateHouse Media

September 2, 2016

This fall, when the U.S. Supreme Court convenes to
hear arguments, the docket will be filled, from top to bottom, with criminal
cases. The court will take up, among other criminal issues, double jeopardy,
federal bank fraud, insider trading, racial bias among jurors and malicious
prosecution.

Next year, when the court is expected to publish its
decisions, promises to be a banner year for criminal justice practitioners. If
next year is a banner year, then 1960s was the banner decade for criminal
justice and the U.S. Supreme Court.

Starting in 1961, the U.S. Supreme Court made a
series of decisions regarding the rights of criminal defendants that still
reverberate today. Starting with the decision of Mapp v. Ohio, the court issued
four decisions that continue to be analyzed, interpreted and adjusted 50 years
later.

In Mapp, Dollree Mapp refused to let the police
enter her house without a warrant. The police returned several hours later with
a document purported to be a warrant — it was not. They entered her home found
some illicit material and arrested Mapp. She unsuccessfully challenged the
evidence at trial. On appeal, the Supreme Court found in her favor and extended
the “exclusionary rule” to state prosecutions.

The exclusionary rule prohibits the police from
using evidence illegally obtained. The rule is the primary impetus behind
improvements in police training and the general protection of individual
constitutional rights.

As recently as this summer, the court was tweaking
Mapp. In a case out of Utah, a defendant was stopped along the street and asked
to identify himself without a legal basis to do so. It was learned that he had
a warrant for a traffic violation and was arrested.

The U.S. Supreme Court refused to throw-out his
arrest. The court noted that it has recognized several exceptions to the
exclusionary rule, three of which involve the causal relationship between the
unconstitutional act and the discovery of evidence. “Evidence is admissible
when the connection between unconstitutional police conduct and the evidence is
remote or has been interrupted by some intervening circumstance.”

In 1963, the court decided Gideon v. Wainwright. The
landmark decision held that state criminal courts must provide counsel to
defendants in criminal cases without cost if they cannot afford an attorney.
Although, most states were already providing free legal counsel to defendants
facing a charge that could result in a prison sentence, Florida and a handful
of other southern states were not.

Two years later the court decided Miranda v. Arizona
and incorporated Gideon into the decision. The decision requires the police to
inform a suspect who is in custody that he has the right to remain silent and
the right to an attorney.

Although the Miranda warnings are etched in nearly
everyone’s consciousness, the decision is still evolving. In 2013, in a case
out of Texas, a murder suspect who answered questions for almost an hour was
then asked about some incriminating evidence. The suspect stopped talking.

The police made notes of his conduct once he stopped
talking. According to the Supreme Court, the suspect “(l)ooked down at the
floor, shuffled his feet, bit his bottom lip, cl(e)nched his hands in his lap,
(and) began to tighten up.”

That conduct was used at his trial as evidence that
he was hiding his guilt. The Supreme Court found that silence is not enough to
invoke the right to remain silent.

Finally, in 1968, the Supreme Court decided Terry v.
Ohio. The court found that it was not an illegal search and seizure if a police
officer with reasonable suspicion — less than probable cause for arrest — stops
a suspect on the street, asks her to identify herself and pats her down for a
weapon. Terry is the basis for the controversial practice in New York City
known as “stop and frisk.”

The 1960s continue to have an impact on the Supreme
Court and more importantly on the fundamental rights of those accused of a
crime.

— Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was
recently released by McFarland Publishing. You can reach him atmattmangino.com and
follow him on Twitter at @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.